A Review of the FBI's Investigations of Certain Domestic Advocacy Groups
Chapter Nine: Conclusions and Recommendations
The Office of the Inspector General (OIG) initiated this review in response to congressional inquiries that raised concerns over whether the FBI had improperly targeted domestic advocacy groups for investigation based upon their exercise of First Amendment rights. The congressional inquiries were prompted by media reports describing FBI documents released by the FBI pursuant to Freedom of Information Act (FOIA) requests. In a congressional hearing, Senator Leahy had questioned FBI Director Mueller about allegations the FBI had "targeted Americans based on their exercise of First Amendment rights," and Director Mueller stated that he would welcome an investigation by the 01G.196
This OIG review examined FBI investigative activity relating to five advocacy groups and one individual who were mentioned in the news articles and congressional inquiries related to the release of FBI documents. Our review addressed FBI activities over a 6-year period, from January 2001 to December 2006, related to: (1) the Thomas Merton Center of Pittsburgh, Pennsylvania; (2) People for the Ethical Treatment of Animals (PETA); (3) Greenpeace USA; (4) the Catholic Worker; (5) Glen Milner, (an individual); and (6) the Religious Society of Friends (the "Quakers").197 In general, we addressed the following issues raised by the FBI documents relating to these groups:
- Whether the FBI targeted the groups or their members because of their First Amendment expressions;
- Whether investigations of the groups or individuals affiliated with them were adequately predicated under applicable Attorney General's Guidelines and FBI policies;
- Whether the FBI improperly collected or retained information about the First Amendment activities of the groups or their members;
- Whether FBI documents contain characterizations of the groups or their members based on their First Amendment views; and
- Whether the FBI improperly classified investigative matters relating to these groups or individuals as terrorism matters.
This chapter first summarizes the findings contained in this report regarding the FBI's investigations on the five domestic advocacy groups and the individuals associated with those groups. It then provides our conclusions and recommendations regarding the FBI's investigations of these groups and individuals.
I. Findings Regarding Individual Groups
A. Thomas Merton Center
The Thomas Merton Center describes itself as "Pittsburgh's peace and social justice center" and advertises its commitment to "nonviolence, social justice, peace and human dignity." We found numerous references to the Merton Center in documents from the FBI's Pittsburgh Division describing its investigative activities. In general, we found that the FBI's investigations related to the Merton Center and its statements describing the basis for that investigation raised the most troubling issues in this review. The FBI's Pittsburgh Field Division conducted surveillance of a Merton Center anti-war rally in 2002 and the FBI later provided inaccurate and misleading information about this incident to Congress and to the public when describing the basis for this FBI investigation.
1. Surveillance of the November 2002 Merton Center Anti-War Event
Our review determined that in late November 2002, a probationary FBI agent in the Pittsburgh Field Division attended a public anti-war leafleting event sponsored by the Merton Center. The agent told us that his supervisor sent him to the rally on a slow work day (the day after Thanksgiving) when he asked the supervisor for work, and that the supervisor instructed him to go to the rally to look for Pittsburgh Field Division international terrorism subjects. We found no evidence that the assignment was made pursuant to a particular investigation or in response to any information suggesting that any particular terrorism subject might be present at the rally. The agent was unable to identify any terrorism subjects at the event, but he photographed a woman in order to have something to show his supervisor. He told us he had spoken to a woman leafletter at the rally who appeared to be of Middle Eastern descent, and that she was probably the person he photographed. He said he discarded the photographs after other agents in the Pittsburgh Field Division Joint Terrorism Task Force (JTTF) were unable to identify the woman pictured in them.
The agent told us that after he returned to his office he conducted some internet research on the Merton Center, and then wrote an EC about the event. The synopsis line of the EC stated: "to report results of investigation of Pittsburgh antiwar activity." The EC described the Merton Center as a "left-wing organization advocating, among many political causes, pacifism." It also described cooperation between the Merton Center and the Islamic Center of Pittsburgh, which the agent found during his Internet research. Yet, the EC did not describe the agent's assignment to look for terrorism subjects or report that he was unable to identify any such subjects. The agent told us that he wrote the EC in the way he did because he was a probationary agent at the time and needed to please his supervisor and show her that he would do what she told him as thoroughly as he could.
In 2006 this EC was publicly released in response to a FOIA request and became the focus of significant controversy. In response, the FBI issued a press response in March 2006 stating that the agent had attended the event "for the sole purpose of determining the validity of information he received from another source establishing a link between an on-going investigation and the [Merton Center]." Moreover, during a Congressional hearing in May 2006, based on information that was provided to him, Director Mueller responded to a question from Senator Leahy that the surveillance was an outgrowth of an investigation, and that the agent was "attempting to identify an individual who happened to be, we believed, in attendance at the rally." In further response to a question for the record submitted by Senator Leahy after the hearing, the FBI declined to provide additional information on the basis that "the investigation of the individual whose presence at the rally was anticipated is still ongoing."
Notwithstanding the synopsis line of the EC, we concluded that the FBI was not targeting the Merton Center or its members for investigation because of the Merton Center's anti-war advocacy. Rather, we concluded that the agent was sent to the event pursuant to an ill-conceived "make work" assignment given to a probationary agent on a slow work day (the day after Thanksgiving). However, we concluded that the agent's attendance at this public event did not violate the Attorney General's Guidelines.
The Attorney General's Guidelines did not require factual predication for the FBI to attend public events like the rally. They required only that the purpose of the attendance be "to prevent or detect terrorist activity." We concluded that this assignment fulfilled this undemanding requirement, since the assignment was designed at least in part to check whether any terrorism subject attended the public event. Although the possibility that any useful information would result from this make-work assignment was remote, the "purpose test" of the Attorney General's Guidelines was not violated. Therefore we believe that attendance at the event was not prohibited by the Attorney General's Guidelines in effect at the time.
However, we concluded that the agent had no authority for conducting any follow-up internet research on the Merton Center or for recording and retaining information about the Merton Center's First Amendment activities in the EC, given that the information did not relate to potential criminal or terrorist activity.
Moreover, we concluded that the FBI's statements to Congress and the public about the reason the agent attended the event were inaccurate and misleading. As noted above, the FBI stated in a press response and Director Mueller stated in Congressional testimony that the FBI's surveillance at the event was based on specific information from an ongoing investigation and conducted to identify a particular individual. These statements were not true. We found no evidence that the FBI had any information at the time of the event that any terrorism subject would be present at the event. Instead, we found that FBI personnel created two inconsistent and erroneous explanations of the surveillance of the anti-war rally, stating inaccurately that the surveillance was a response to information that certain persons of interest in international terrorism matters would be present.
The first version appeared in a document created by the Office of the Chief Division Counsel in the FBI Pittsburgh Field Division in early 2006, in the course of preparing a response to a FOIA request. This version eventually became the basis for the press response issued by the FBI and in turn for Director Mueller's Congressional testimony. In this version, the surveillance was supposedly directed at Farooq Hussaini, an individual living in Pittsburgh who had become "of interest" to the FBI based on evidence developed in a terrorism investigation in a different field office. However, we determined that this version of events was not true. First, the agent who attended the rally denied this version of events. Second, we found no evidence that Hussaini had been identified by anyone in the FBI's Pittsburgh Field Division as a person of interest at the time of the rally. Neither the agent, his supervisor, nor anyone else in the Pittsburgh Field Division was even aware of the evidence developed in the other field office investigation at the time of the rally. Moreover, the agent who attended the rally told us that the chance that the evidence developed in the other field office actually related to Farooq Hussaini in Pittsburgh was "almost non-existent."
We recognize that the possibility exists that the inaccurate statements in this first version of events were inadvertent. However, we believe it is more likely that this version reflected an effort to state a stronger justification for the surveillance. Several Pittsburgh Field Division employees may have had a hand in creating this inaccurate document, but we were not able to determine with certainty who was specifically responsible for creating this inaccurate version of events.
We also determined that later the FBI created another different, inconsistent, and also inaccurate explanation for the FBI's surveillance of the Merton Center rally in response to follow-up inquiries from Senator Leahy. This second inaccurate version is contained in a document prepared by the FBI's Counterterrorism Division in consultation with personnel from the Pittsburgh Field Division. According to this second version, the FBI attended the rally to look for a completely different person (referred to as "Person B" in this report) who was at the time the subject of a preliminary inquiry in the Pittsburgh Field Division. We found no evidence to substantiate this version either. The agent who attended the rally told us although he was looking for terrorism subjects in general he was not looking for Person B in particular and that he was not even carrying a picture of Person B at the time of the surveillance. The agent who attended the rally also made no mention of this subject in the EC and did not file the EC under the case number pertaining to the subject. In addition, the FBI case agent who was responsible for the preliminary inquiry told us that he was not aware that any surveillance of his subject was being conducted at the rally. Moreover, we found no evidence to suggest that the FBI had any reason to believe that this subject would be in attendance at the rally.
Again, although it is conceivable that the errors in the second version were also inadvertent, we believe they were more likely the result of an effort by FBI personnel in Pittsburgh Field Division or the Counterterrorism Division to justify the surveillance and to substantiate the Director's testimony. However, we were again unable to determine with certainty who was responsible for this misleading version of events.
We concluded that the Director was not aware that the information that was the basis for his testimony and the FBI's response to Senator Leahy's follow-up letter was inaccurate. We found no evidence that Director Mueller received information that should have given him reason to doubt the accuracy of the briefing materials he relied on in preparing to testify. Rather, we concluded that FBI personnel took insufficient care to ensure that Director Mueller was given accurate information and that Congress was accurately informed about the basis for the FBI's actions in the Merton investigation. We recommend that the FBI review this case to determine if action is warranted for any of the individuals involved in the creation of the inaccurate justifications for the FBI's surveillance of the Merton anti-war rally.
2. The 2003 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." The LHM indicated that a JTTF "investigation had 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." It described the Merton Center's plans for an upcoming anti-war rally (different from the one discussed above). As written, the LHM created the inaccurate impression that the Merton Center was the subject of an international terrorism investigation. We were unable to determine the origins and author of the LHM, which was found on the hard drive of an FBI Pittsburgh Field Division stenographer's computer. The LHM was an inaccurate document that was not approved or disseminated outside the FBI Pittsburgh Field Division. Yet, contrary to the impression given by the document, we did not find any evidence that the FBI's Pittsburgh Field Division had in fact opened an investigation of the Merton Center.
3. Surveillance Relating to the 2003 Miami Free Trade Area of the Americas (FTAA) Meeting
In 2003, the FBI's Miami Field Division opened a special events case in preparation for the upcoming Free Trade Area of the Americas (FTAA) meeting in Miami. The FBI was concerned that the event could attract violent protests similar to the 1999 World Trade Organization protests in Seattle. The Miami Field Division also opened a full investigation on unknown subjects planning to disrupt the event.
The FBI Miami Field Division requested that the FBI Pittsburgh Field Division collect intelligence related to efforts by the Merton Center and another advocacy group, the Pittsburgh Organizing Group (POG) to recruit protesters for the FTAA meeting. The POG is a self-described anarchist group that the Merton Center has publicly identified as an "affiliate." We found no evidence that the Pittsburgh Field Division collected the requested intelligence. However, three JTTF agents from Miami traveled to Pittsburgh to monitor a conference sponsored by the Merton Center and POG and to conduct related surveillance.
We concluded that the FBI's special events case and the full investigation relating to the FTAA did not violate the Attorney General's Guidelines and FBI policies. Although FBI documents did not make explicit what federal criminal statute the FBI relied on in opening the full investigation, the FBI had information supporting a "reasonable indication" that the unnamed subjects, possibly including protesters being recruited at the Pittsburgh conference, would violate the civil disorders statute, 18 U.S.C. § 231. For similar reasons we found that the Attorney General's Guidelines and FBI policies allowed the FBI to monitor the Pittsburgh conference and to conduct related investigative activities.
4. Investigation of POG Members and Surveillance of First Amendment Activities
In another matter, in 2004 and 2005 the FBI Pittsburgh Field Division conducted investigative activities relating to individuals associated with the POG. Several of these individuals were also allegedly associated with the Merton Center or attended meetings at the Merton Center. The FBI opened two preliminary inquiries on three POG members in connection with upcoming anti-war protests in Pittsburgh. Although the FBI Pittsburgh Field Division's opening ECs did not specify a federal crime, the FBI case agent and supervisors responsible for this case told us that POG or its members utilize "direct actions" as part of their protests, and that arson, attacks on military recruiting centers or other government facilities, and bombings were among the possible "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.
We concluded that the factual predication for the preliminary inquiries opened on the POG members for a federal crime was thin. However, because the Attorney General's Guidelines provided the FBI wide latitude to open a preliminary inquiry in response to any information "indicating the possibility of criminal activity," we did not find a violation of the applicable predication standard in the Attorney General's Guidelines as to two of the three subjects. Yet, information indicating the possibility of a federal crime by the third individual was so lacking that we concluded the FBI did not have sufficient predication under the Guidelines to open a preliminary inquiry of him as a subject.
We determined that for most of the period of the preliminary inquiries, the FBI conducted only limited investigative activity relating to the three subjects. However, near the time that the FBI's preliminary inquiries were closed, the case agent for one of the inquiries recruited as a confidential informant to collect information regarding members of the POG who participated in meetings . However, the agent told us that the recruiting of this source was more "motivated by wishing to participate in the informant program than it [was] POG generally s eakin ." At the agent's direction, the source attended several SENTENCE DELETED , and provided information about the other participants to the agent. The FBI files contain a series of source reports resulting from this activity that recorded information about the identi and First Amendment expressions of POG members meeting . The case agent continued directing his source to monitor POG members at public events even after the preliminary inquiry under which this assignment was originally conducted was closed.
We concluded that the agent's purpose in recruiting this source and assigning this source to conduct surveillance on POG was to establish his participation in the source program, not to prevent or detect terrorism. Because of this improper purpose, we concluded that the FBI's collection of information about POG members' First Amendment activities was not "pertinent to and within the scope of an authorized law enforcement activity" and therefore raised serious questions under the Privacy Act, the Attorney General's Guidelines, and FBI policy.
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 and to collect information that was almost exclusively focused on the First Amendment activities of persons who were not the subject of any investigation. Moreover, the source collected no information regarding the subject of the preliminary inquiry under which he was operated, and the source continued to collect and report information on First Amendment activities after the FBI's inquiry was closed.
B. People for the Ethical Treatment of Animals
The People for the Ethical Treatment of Animals (PETA) was founded in 1980 and today is the largest animal rights organization in the world. PETA has been based in Norfolk, Virginia since 1996 and has affiliates in the United Kingdom, Germany, the Netherlands, India, and Asia. According to its website, PETA operates on the principle that "animals are not ours to eat, wear, experiment on, or use for entertainment." It primarily focuses its efforts on four areas that it believes create the largest and most intense amount of suffering among animals: factory farms, laboratories, the clothing trade, and the entertainment industry.
We reviewed the PETA-related cases conducted by the FBI's Norfolk Field Division because PETA's headquarters is located in that city and the Norfolk Field Division conducted several investigations of PETA or individuals associated with PETA. Our review did not find that the FBI targeted PETA or its members for investigation based solely on their exercise of First Amendment rights. Rather, the evidence indicates that the FBI opened investigations of several individuals and of PETA as an organization to determine whether PETA or any of its leadership was funding or directing the criminal activities of the Animal Liberation Front (ALF) and other animal rights extremists.
We concluded that the FBI did not violate the Attorney General's Guidelines when it opened most of these investigations. However, we questioned whether the FBI had a sufficient factual basis to open several of the cases as full investigations rather than preliminary inquiries. We concluded with respect to one individual that the facts contained in the opening EC did not support opening any investigation at all.
The most significant PETA-related cases the FBI opened were against Alex Collins and against the organization itself.198 The case against Collins, which remained open for nearly 6 years, was based on information that Collins , and traveled to foreign countries that instructed animal rights activists about maximizing economic damage to businesses with techniques that included raids and arson. However, FBI Headquarters recommended to the field office responsible for the matter that it convert the case from a full investigation to a preliminary inquiry for several reasons, including that the information about Collins was 2 years old. In addition, the reliability of the source for the information was not indicated and the allegations were conclusory and lacking in detail. We agreed with FBI Headquarters that the information did not warrant conducting that case as a full investigation.
The Field Division's decision to operate the case as a full investigation contributed to the case remaining open for 6 years. We concluded that the lengthy duration of the investigation was unreasonable and was inconsistent with FBI policy requiring that an investigation with potential impacts on First Amendment activity "not be permitted to extend beyond the point at which its underlying justification no longer exists." Had the investigation been conducted as a preliminary inquiry, and therefore been subject to the requirement that such cases be renewed at defined intervals, we believe it is likely the case would have been closed considerably earlier than it was.
The FBI's investigation of Collins also illustrates the impact a lengthy investigation can have on individuals who are subjects of FBI preliminary and full investigations. Because this case was classified as a domestic terrorism matter, Collins was placed on federal watchlists. As a result, the FBI collected information about Collins's travel activities for years. At least one time Collins returned to the country, Collins was subjected to a secondary inspection that included copying personal documents. Although the FBI had Collins removed from a watchlist that tracked international travel, Collins apparently remained in at least two other government databases that caused the FBI to continue receiving international travel alerts relating to Collins. The FBI, pursuant to its policy, did not remove Collins from a separate FBI watchlist until the investigation was closed. For the reasons explained above, we believe this would have occurred substantially earlier had the case been conducted as a preliminary inquiry.
The FBI also opened a preliminary inquiry on PETA to determine whether grounds existed to initiate a broader, terrorism enterprise investigation of the organization. The investigation remained open for a total of 15 months, during which time the case received 3 90-day extensions. We concluded that the FBI did not violate the Attorney General's Guidelines opening this case or in extending the inquiry on the first two occasions. However, we questioned the factual basis for the third extension.
We identified one PETA-related case that we believe did not have a sufficient factual basis even for a preliminary inquiry. The communication that opened the case did not contain any indication that the individual made statements advocating force or violence, and the only information indicating involvement in unlawful acts was one, or possibly two, arrests several years prior to the case being opened for protest activities not uncommon for animal rights activists. We believe these previous arrests were not sufficient to justify the opening of a preliminary inquiry. We also determined that the FBI field division responsible for this case also failed to comply with FBI policy requiring that a domestic terrorism subject be removed from federal watchlists when the case was closed. As a result, the subject was not removed until 3 years after the investigation was closed.
According to its annual report, Greenpeace is a global environmental organization that "uses peaceful protest and creative communication to expose global environmental problems and promote solutions for the future."
Our review did not find that the FBI targeted Greenpeace or its members for investigation based solely on their exercise of First Amendment rights. Rather, the FBI opened investigations of individuals associated with Greenpeace based on concerns about potential illegal conduct, such as trespass, vandalism, and other crimes.
In one case we reviewed involving Greenpeace protest activities in Alaska, the FBI's investigation was based on evidence of potential conduct that could violate federal laws such as 18 U.S.C. § 1366 (Destruction of an Energy Facility). We concluded that the FBI had sufficient factual predication to open a preliminary inquiry and later a full investigation on members of Greenpeace in that case. For similar reasons, we found that the FBI was authorized to collect and retain information about the future travel and protest plans of the subjects.
In another case, we reviewed the FBI's predication for a full investigation of Greenpeace members relating to their planned protest activities with respect to two corporations in Texas (Exxon and Kimberly-Clark). In prior years, the Greenpeace members had been arrested SENTENCE DELETED . The FBI opened an investigation based on the belief that the subjects might be planning similar or perhaps more destructive protest activities in the future. The FBI used a wide variety of investigative techniques in this investigation, including surveillance.
We did not conclude that the FBI was investigating the subjects solely as a result of their First Amendment activities. However, the FBI articulated little or no basis for suspecting a violation of any federal criminal statute. The subjects had previously been prosecuted for , and the FBI's opening EC did not articulate any basis to suspect that they were planning any federal crimes. Moreover, the FBI did not comply with 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.
We also found that the FBI kept this investigation open for over 3 years, long past the corporate shareholder meetings that the subjects were supposedly planning to disrupt, and over a year beyond the last investigative activity in the case. We concluded that the investigation was kept open "beyond the point at which its underlying justification no longer existed," which was inconsistent with the FBI's Manual of Investigative and Operational Guidelines (MIOG).
The FBI's investigations of these subjects were also classified as Acts of Terrorism investigations. We considered whether these matters satisfied the broad definitions of terrorism in the MIOG and therefore could be classified under the FBI's Acts of Terrorism investigative classification. In the Alaska case, we found that the FBI had developed credible information regarding the potential use of force or violence by at least one of the subjects, thereby providing a basis for the FBI to classify the case as an Act of Terrorism matter under the MIOG. In the Texas case, however, we found scant basis for the FBI to suspect the subjects were planning acts that would involving "force or violence," as the MIOG required to classify the matter as relating to Acts of Terrorism.
The classification of this investigation as a terrorism case had significant consequences to the subjects, who were placed on a federal watchlist like other subjects of Acts of Terrorism investigations. As a result, the FBI collected information about their travel and protest activities throughout the United States.
D. The Catholic Worker
Our review concluded that the FBI did not target the Catholic Worker or its members for investigation based on their exercise of First Amendment rights. Although several incidents related to Catholic Worker protests of the Iraq War, investigative activities and documents relating to the Catholic Worker or its members were generated by an array of FBI field divisions responding to discrete circumstances.
Our review of the documents related to the investigations of members of the Catholic Worker revealed that most did not describe the exercise of First Amendment rights by Catholic Worker members, or the contents of their expressions. In those documents that did reference First Amendment activities, information the FBI collected and retained related to concerns about potential criminal actions such as damaging military property. We also concluded that the retention of this information did not violate Attorney General's Guidelines or FBI policy.
However, in one case we concluded that the FBI improperly retained information about a public event that Catholic Worker members may have attended. This information did not relate to "potential criminal or terrorist activity" and therefore should not have been retained under the Attorney General's Guidelines then in effect.
In the two investigations we reviewed in which Catholic Worker members were named or unnamed subjects, we concluded that the investigations did not violate the Attorney General's Guidelines and that the investigative techniques used during these investigations were limited.
We also reviewed two incidents in which FBI records referenced the Catholic Worker in a "special events" file. We determined that in one case the FBI retained information that described a public anti-war rally's organizing group, its purpose, and number of attendees. Under the Attorney General's Guidelines in effect at the time, as well as in FBI field guidance, this information should not have been retained because it contained no observations relating to potential future criminal or terrorist activity.
We also considered two instances in which the FBI retained in a domestic terrorism file ECs referencing anti-war related civil disobedience by Catholic Worker members. The FBI ECs retained information about nonviolent civil disobedience (peaceful trespass on a military facility). Retaining this information - which pertained to a federal crime - was not prohibited by the Privacy Act, Attorney General's Guidelines, or FBI policy.
However, we question the FBI's collection and retention of this information. The acts in question were nonviolent civil disobedience, and the FBI has at various times disavowed interest in such activity. For example, in April 2006, following the FBI's release of documents pursuant to a FOIA request, the FBI's Executive Secretariat Office responded to a letter from a citizen expressing concern that the FBI was "investigating the Catholic Worker" by stating: "[T]he FBI is not targeting lawful civil disobedience. Our organization does, however, seek to prevent unlawful violent activities. In order to do so, we advise our partners in law enforcement of the tactics used by those who wish to impinge on the civil rights of others by violently disrupting otherwise peaceful marches and assemblies." Yet, the information the FBI collected in one case had no relationship to any "violent activities," much less to terrorism. Nothing contained in FBI files or stated by the Special Agent who recorded the information explained the potential relevance of this information to the FBI's anti-terrorism mission.
We also concluded that the FBI's classification of one of these matters under the Act of Terrorism classification was inappropriate, because the acts in question (trespass on a military facility) did not include the use of violence or force. Other file classifications were also available to the FBI and their use would not have interfered with the FBI's ability to retrieve the information in the event that it became relevant to a future terrorism investigation.
E. Vandenberg Air Force Base
The FBI opened a preliminary inquiry and full investigation into the activities of Greenpeace, the Catholic Worker, and other groups and individuals with respect to planned protests at the Vandenberg Air Force Base (VAFB) in Central California in 2001. Our review found no evidence that the FBI targeted Greenpeace or the Catholic Worker based on their exercise of First Amendment rights in this protest activity. We found that the Vandenberg investigations did not violate Attorney General's Guidelines. The FBI had obtained information that Greenpeace was planning or considering actions to disrupt a National Missile Defense test launch by activities that would exceed trespass. The planned activities would constitute a federal offense, such as interference with the national defense (18 U.S.C. § 2155). When the FBI added the Catholic Worker as a subject to its investigation, the FBI had information that the group had violated and might again violate a federal law such as trespassing onto a military installation, 18 U.S.C. § 1382.
However, the FBI included its files characterizations of the Catholic Worker as advocating, among other things, "peace with a Christian and semi-communistic ideology," and "a communist distribution of resources." FBI guidance states that "[t]he collection of information concerning groups and individuals must be justified as reasonable and necessary for investigative purposes." See the FBI MIOG, Introduction, § 1-4(4). We concluded that these characterizations of the Catholic Worker lacked a reasonable and necessary relationship to any alleged actions on the group's part to impede the National Missile Defense launches.
F. Glen Milner
We also examined the FBI's investigative activity relating to Glen Milner, who was described in a Seattle Post-Intelligencer article as a "Quaker peace activist" who was "under watch" for protest activities carried out at the 2003 Seafair festival in Seattle, Washington. Although the FBI utilized its special events authorities in connection with the Seafair, most of the information in FBI files reflected investigative activity by other agencies. We concluded that the FBI did not improperly investigate Milner because of his exercise of First Amendment rights or otherwise act in violation of FBI policies. We also found no evidence that the FBI investigated the Quakers as a group, or any individuals identified in FBI documents as Quakers, for their protest activities.
II. Conclusions and Recommendations
In this review we addressed several issues raised by the FBI's investigation of selected First Amendment advocacy groups. We reached the following general conclusions.
A. Targeting for First Amendment Views
As noted above, our review examined whether the FBI targeted the groups or their members because of their First Amendment expressions rather than for valid law enforcement purposes. The evidence did not indicate that that the FBI targeted any of the groups for investigation on the basis of their First Amendment activities. In most cases, the groups were not themselves subjects of any investigation. Instead, individuals associated with the groups were named subjects. As detailed in our report, the FBI's investigations of these individuals were generally predicated on concerns about potential criminal acts by the individuals, not their First Amendment views.
However, FBI documents we reviewed gave the impression that the FBI's Pittsburgh Field Division was focused on the Merton Center as a result of its anti-war views. In fact, the FBI did not open any investigation of the Merton Center at all. Instead, we found that some of the FBI's investigative activities relating to the Merton Center were the result of poor judgment by agents and supervisors in unconnected instances, including a supervisor's decision to send a probationary agent to monitor an anti-war rally on a slow work day and an agent's decision to operate a source in the POG investigation in order to establish his participation in the FBI's source program.
A related issue that we addressed was whether the investigations relating to the groups and their members were adequately predicated under the Attorney General's Guidelines and FBI policies. The applicable standard in the Guidelines for predication was low, especially for preliminary inquiries, which required only the "possibility" of a federal crime. In part as a result of this standard, we found in most cases that the FBI did not violate the Guidelines in opening these investigations.
However, we concluded that in several cases, the FBI's predication was factually weak and in several cases there was little indication of any possible federal crime as opposed to local crime. We also found that in some cases that matters opened as full investigations should have been opened as preliminary inquiries. This distinction had consequences, because the Attorney General's Guidelines limit the investigative techniques that can be used during preliminary inquiries and require more frequent review to determine if the investigation should be closed.
We also found that FBI case agents sometimes did a poor job of documenting the predication for opening investigations, despite the fact that FBI policy required "strict compliance" with the Attorney General's Guidelines, including the documentation requirement, in cases implicating First Amendment rights. As a result, in the absence of clear contemporaneous documentation, FBI agents and supervisors sometimes provided the OIG with speculative, after-the-fact rationalizations for their prior decisions to open investigations that we did not find persuasive.
In many of the cases we reviewed, the FBI conducted relatively little investigative activity of any kind. In those cases in which the FBI conducted activity, we found with rare exception that the FBI used techniques that were authorized for the level of investigation that had been predicated, such as a preliminary inquiry, a full investigation, or pursuant to a special event.
However, in some cases, we found that the FBI extended the duration of investigations involving advocacy groups or their members without sufficient basis. This had practical impacts on subjects, whose names were maintained on watchlists as a result and whose travels and interactions with law enforcement were tracked. For example, the FBI continued to collect information about the international travel of two subjects of a PETA-related investigation after the point that the underlying justification for the case ceased to exist.
C. Collection and Retention of Information
We also reviewed whether the FBI improperly collected or retained information about the First Amendment activities of the groups or their members. We found that in most cases, documents in FBI files referencing the advocacy groups did not focus on the content of their First Amendment expressions.
However, we found instances in which the FBI used questionable investigative techniques and improperly collected and retained First Amendment information in FBI files. These instances, which are summarized above, related to the Merton Center or the Pittsburgh Organizing Group. In one case, a probationary agent was sent to look for terrorism subjects at an anti-war rally in an ill-conceived project on a slow work day that resulted in the placement of inappropriate information in FBI files, in violation of the Attorney General's Guidelines. In another, an FBI agent recruited a source to report on the First Amendment activities of and advocacy group in a poorly supervised effort to establish the agent's participation in the source program. This activity also resulted in the improper retention of First Amendment information in FBI files.
Moreover, although we did not find that these incidents were part of a coordinated investigation by the FBI based solely on the First Amendment activities of these groups, they had an impact on the First Amendment rights of those groups and their members.
D. Characterizations of Groups
With one exception, the FBI documents we reviewed relating to the selected advocacy groups generally did not contain inappropriate characterizations of the groups. In one case, an agent described a group as "communistic" in a context in which that characterization was irrelevant to a law enforcement purpose.
E. Classification as Terrorism Matters
The FBI classified the matters we examined as domestic terrorism cases. This practice did not violate the broad definitions of domestic terrorism in federal law, the Attorney General's Guidelines, and FBI policies. However, this practice relied upon potential crimes that may not commonly be considered as "terrorism" (such as trespassing or vandalism) and that could alternatively have been classified differently, such as under the classification for crimes on government reservations. The domestic terrorism classification had impact beyond any stigma resulting from the public release of the documents under FOIA. For example, persons who are subjects of domestic terrorism investigations are normally placed on watchlists, and their travels and interactions with law enforcement may be tracked.
F. OIG Recommendations
Based on this review, and some of the problems we found in the FBI investigations we examined, we make the following six recommendations.
1. Address False and Misleading Statements to Congress and the Public
As detailed in this report, we found that in 2006 the FBI made false and misleading statements to the public and to Congress about the Pittsburgh Field Division's surveillance of a Merton Center anti-war rally. Two inconsistent and erroneous versions of the incident were created in which the FBI claimed that the surveillance was a response to information that certain persons of interest in international terrorism matters would be present. This was not true. We recommend that the FBI examine our findings and determine whether administrative or other action is warranted for any individuals in connection with this matter.
2. Establish Procedures to Track Source of Facts Provided to the Public and Congress
As described above, we had difficulty tracing the sources of information that the FBI provided to Congress and the public regarding the Pittsburgh Field Division's surveillance of the 2002 anti-war rally sponsored by the Merton Center. We recommend that the FBI seek to ensure that it is able to identify and document the source of facts provided to Congress in testimony and questions for the record, as well as in press releases.
3. Require Identification of Federal Crime as Part of Documenting Predication
The Attorney General's Guidelines require that FBI agents document the basis of predication for preliminary and full investigations. FBI policy requires "strict compliance" with this documentation requirement. As detailed in this review, we found that in some cases the predication appeared to be based on possible violations of state law, rather than federal offenses. We recommend that the FBI specify the potential violation of a specific federal criminal statute as part of documenting the basis for opening a preliminary or full investigation in cases involving investigation of advocacy groups or their members for activities connected to the exercise of their First Amendment rights.
4. Consider Revising Attorney General's Guidelines and DIOG to Reinstate Prohibition on Retention of Irrelevant First Amendment Material from Public Events
The 2008 Attorney General's Guidelines and the FBI's Domestic Investigative and Operational Guidelines (DIOG) in various places address First Amendment issues in connection with federal criminal investigations. The 2008 Attorney General's Guidelines loosened the limitations on the FBI's retention of information collected in connection with attendance at public events. Under Part VI of the Attorney General's Guidelines, the FBI formerly was prohibited from retaining any such information unless it relates to potential criminal or terrorist activity. This limitation has been removed from the most recent Guidelines. Therefore, some of the violations of policy we found in this review would not be violations if they occurred today. We recommend that the Department examine the Guidelines and the DIOG to determine whether to reinstate the prohibition on retaining information from public events that is not related to potential criminal or terrorist activity.
5. Clarify When First Amendment Cases Should Be Classified as "Acts of Terrorism" Matters
We identified several cases in which the FBI investigated acts of nonviolent civil disobedience that could constitute federal crimes (such as trespassing on military facilities). These investigations were classified as Acts of Terrorism matters. We recommend that the FBI and the Department consider and provide further guidance on when such cases involving First Amendment issues should be classified as Acts of Terrorism matters and when they should not.
6. FBI Inspection Division Should Review Pittsburgh Division Cases
In light of the problems in investigations by the FBI's Pittsburgh Field Division described in this report, we recommend that the FBI Inspection Division conduct an inspection of recent domestic terrorism cases in the Pittsburgh Field Division to assess the Division's compliance with applicable statutes, Attorney General's Guidelines, and FBI policies involving First Amendment issues.
In sum, the evidence in our review did not indicate that that the FBI targeted any of the groups for investigation on the basis of their First Amendment activities. However, we also concluded that the factual basis for opening some of the investigations of individuals affiliated with the groups was factually weak. Moreover, in several cases there was little indication of any possible federal crimes as opposed to state crimes. In some cases, we also found that the FBI extended the duration of investigations involving advocacy groups or their members without adequate basis, and in a few instances the FBI improperly retained information about the groups in its files. In some cases, the FBI classified some investigations relating to nonviolent civil disobedience under its "Acts of Terrorism" classification.
We recognize that the FBI investigations we examined in this report occurred several years ago, when different FBI policies and versions of the Attorney General's Guidelines were in effect. Nevertheless, we believe this report is relevant to current and prospective FBI investigations that may implicate First Amendment considerations. Although the current Attorney General's Guidelines and FBI policies contain some restrictions on the conduct of such cases, they continue to allow the FBI wide latitude to pursue these investigations. We therefore believe that the findings of this report, the concerns about the FBI's activities in cases we reviewed, and the recommendations we make in this report are important for current FBI practices. We therefore believe that that the FBI should carefully consider our findings and recommendations in this report to help avoid similar problems to those in the investigations discussed in this report.
196 FBI Oversight: Hearing Before the S. Jud. Comm. 109th Cong. 14 (2006).
197 Our review period encompasses most of the years covered by the FOIA requests and ends in 2006, when the OIG received the Congressional inquiries.
198 Alex Collins is a pseudonym.
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