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In Trump’s America, Dissenters Beware

18 Dec 2017

Jonathan Blanks

The history of government investigation, infiltration, and
disruption of Americans who exercise their First Amendment rights
is nearly as old as the Amendment itself. Congress passed the
Alien and
Sedition Acts (1798)
to crack down on anti-government writing
and protest. President Lincoln famously
suspended habeas corpus
(a detainee’s right to
challenge his detention) and
jailed dissenting journalists
and others suspected of spying
during the Civil War. Just over half a century later, the Bureau of
Investigation — the precursor to the FBI — was
established and shortly thereafter infiltrated and undermined the
Socialist Party of America.

The BOI and other federal government organs surveilled or
pacifists and other anti-militarist groups like the Quakers, labor
organizers, anarchists, communists, radical groups, and even
foreign language newspapers
they thought to be subversive
throughout the early twentieth century. As the century moved on,
black nationalists like Marcus Garvey and the American Civil
Liberties Union came under direct government scrutiny. Once
established under the directorship of J. Edgar Hoover, the FBI
continued and enlarged the scope of surveillance, infiltration, and
harassment efforts against the NAACP, Martin Luther King Jr.,
Malcolm X, and many others in the American civil rights movement of
the 1950s and ’60s, include an
infamous attempt to blackmail Dr. King to kill himself

Some interventions may have, to some degree, been warranted.
Certainly, there were spies and others who sought to violently
overthrow (or aid in secession from) the government and break the
laws that govern society. But whatever threats those individuals or
groups caused were usually dwarfed in comparison to the
government’s reaction toward them and, very often, the individuals
posed no security threats at all.

In the past year, there
have been troubling signs that government actors are looking to
stifle dissenting speech, harking back to a long history of
crackdowns on protesters and civil rights activists.

As much as Americans may like to think of government spying on
and interfering with innocent people as a relic of the Red Scares
and Cold War pasts, recent law enforcement actions against Muslim
Americans, Black Lives Matter (BLM) activists, and anti-Trump
protesters strongly suggest history is repeating itself.

If there is one overriding theme throughout the history of
American surveillance, it is mission creep. In 1976, a bipartisan
Senate committee led by Democratic Idaho Senator Frank Church
a massive report
, following its investigation into domestic
surveillance of Americans and other national security issues. The
Church Committee found that the government had abused its authority
in order to spy on, violate the rights of, and undermine the
political power of thousands of American citizens. The committee
found that some discrete and focused investigations into
individuals or small groups of potential suspects of criminal
activity became dragnets for political dissenters and others who
otherwise found themselves on government watchlists. Between 1960
and 1974, the FBI conducted more than 500,000 different
investigations of “subversives,” like
folk singers

Other programs like COINTELPRO
were, from the outset, large domestic spy operations to “disrupt”
and “neutralize” targets like the American Communist Party that
evolved into interference in civic organizations like
parent-teacher associations and advocacy groups supporting equal
employment opportunity. While skeptics might like to assign such a
vast surveillance and retribution to the paranoia of the longtime
FBI director, the Church Commission Report identified internal
systemic tendencies to enlarge investigative targets, and the
report itself was released several years after Hoover’s death.
Moreover, the
Rockefeller Commission
, the
New York Times,
and others revealed similar abuses of
power by the CIA and National Security Agency. Documents released
in 2013 revealed these agencies were wiretapping
boxing legend Muhammad Ali
humorist Art Buchwald
, among many others.

The threats to First Amendment rights extend beyond politics and
into religion as well. In a misguided effort to root out terrorists
since 9/11, the FBI and local law enforcement agencies
broadly surveilled American Muslim communities
infiltrated mosques in search of so-called radicals
. This
infiltration was undertaken in spite of the fact that American
Muslims are typically difficult to recruit into radical Islam.
Harvard lecturer
Jessica Stern told Politico in 2016,
“Polling shows
that American Muslims are patriotic. They are significantly happier
with the direction of the country than non-Muslims.” For that
reason, many Muslims are eager to root out potential radicals in
their midst, and in at least one case, they even reported

an FBI informant to the FBI
for being a threat to the mosque
after he said he had weapons and suggested blowing up a mall. (In
several cases, civil liberties advocates have
accused the FBI
and other
law enforcement
of facilitating phony plots and encouraging
people to join where no previous credible threat existed.) The free
exercise of religion is inherently threatened when government
instigates and agitates adherents, particuarly inside holy places,
which can further widen divides between targeted religious
communities and law enforcement.

Reflecting on this lengthy history up to the present day, when
documents leak, as they did in October, revealing that the FBI is
going to focus attention on “Black
Identity Extremists,”
(BIE) First Amendment alarm bells should
sound, once again.

The FBI refers to BIE as an “ideology,” though neither the FBI

nor Attorney General Jeff Sessions
has identified an
organization or program directly associated with it. There have
been acts of
violence against police by black individuals
uttered complaints about police violence against black
in police ambushes in Dallas and New York City, but
no communication, coordination, or other link between them has been
established. Former FBI counterterrorism agent and Brennan Center
fellow Michael German told Foreign Policy in October that

BIE means little more than “black people who scare [the FBI].”

While the FBI told FP they “cannot initiate an
investigation based solely on an individual’s race, ethnicity,
national origin, religion, or the exercise of First Amendment
rights,” it is doubtful many activists in BLM or similar
organizations will choose to give the Bureau the benefit of the

When governments crack down on speech rights, they not only
punish the immediate targets, but everyone else who believes they
may be subjected to surveillance, mistreatment, or prosecution if
they similarly exercise their rights. This broader effect is known
as the “chilling” of free speech, in which other potential
dissenters or like-minded folks are intimidated or otherwise
dissuaded from speaking out against the status quo for fear of
government retribution.

Internal emails and other documents obtained by Al Jazeera
through a Center for Constitutional Rights (CRC) lawsuit show
that the FBI has indeed monitored BLM, which the Bureau
rationalized with claims of the potential for violence erupting at
such events. Omar Farah, the lead CRC lawyer on the case,

told Al-Jazeera that
, “the problem with surveillance -
and particularly the historical and current surveillance of
black-led movements for social change - is that the surveillance
itself is what does all the work, even if…the FBI later stops
recording protected activity…. Surveillance is what chills people
from mobilizing and organizing.”
Other commentators
contend that the BIE distinction is simply a
fiction created to give federal law enforcement the cover to
surveil BLM marches and other constitutionally protected activities
by black activists.

An apparent crackdown on dissidents is in the news: More than
180 protesters and marchers are
facing felony and misdemeanor charges after being rounded up during
the so-called J20 protests
of the Inauguration of President
Trump last year. Several black-clad protesters threw rocks, broke
business windows, and even torched a limousine in downtown D.C.,
while countless protesters marched and demonstrated peacefully. In
response, the federal prosecutor has decided to charge almost every
individual picked up by police with felony rioting, despite the
relatively small number of individuals directly responsible for
property damage. (Those who the government believes were directly
responsible for this damage indeed face additional charges.)

After some store windows were broken, along with other damage in
proximity of a large group of marchers, D.C. Metropolitan Police
trapped about 200 protesters, observers, and journalists and held
them for several hours outdoors. The handful of credentialed
journalists among those arrested and charged for the most part had
their cases dropped.

The trial of the first six J20 defendants is currently underway.
The six include
one photojournalist
who allegedly had press credentials

under a pseudonym
. On Wednesday, the judge dismissed felony
rioting charges
against all six defendants, but the trial
continued on the misdemeanor counts.

Before the first trial began, one person pled guilty to a felony
charge and about 20 people pleaded guilty to misdemeanors.
Marceline Mitchell was one of those in the march who pled to a
lesser charge. She told me over the phone that she came to D.C. to
observe the protest as part of her undergraduate thesis, but freely
admitted that she was not a fan of the President. According to her
memory, about 30 minutes after she first heard windows smashed
toward the back of a group of marchers, Mitchell saw police
officers arrive at the scene and close off streets, encircling the
group of mostly peaceful protesters.

“Immediately upon surrounding and completely circling us, [the
police] just started pepper spraying us all, indiscriminately,”
Mitchell said. “There was no reason for that; no one was even
trying to get out of this kettle” — a kettle is a crowd
control tactic in which police keep crowds in a controlled area.
“In my head, I’m just thinking “I’m exercising my First Amendment
right. [The window smashing] has nothing to do with me.”

Mitchell said she was surprised there were no orders to
disperse, as she had witnessed at #Occupy events and other
protests, but instead, she was corralled into the kettle and
eventually charged with felony rioting. She didn’t feel she could
fight the charges because it was too expensive and onerous to
travel back to and from D.C. Like so many criminal defendants, a
plea deal with community service and a fine seemed like the best
option available. As an additional cost, Mitchell had to replace
the phone the police took, which has not been returned to her to
this day.

from the Huffington Post
and others suggest the judge
presiding over the first J20 trial is unsympathetic to the First
Amendment claims put forth by the defendants. If convicted, the
defendants may have better luck at the appellate levels of the
federal system, but such processes are long and very expensive. In
the meantime, any person convicted of felonies may face collateral
like ineligibility for certain jobs and government
benefits, or the revocation of their right to own firearms, even if
they never step foot in a prison. Should this become precedent even
temporarily, anyone who comes to protest in D.C., where protests
are commonplace, would potentially be at risk of prosecution due
solely to their physical proximity to criminal acts by others. The
financial and personal costs associated with fighting federal
charges could threaten some of the bedrock freedoms of speech and
assembly in our nation’s capital.

The government should be vigilant in attempts to keep Americans
safe. It should also seek to bring those responsible for the
destruction of property to account for their actions. But these
laudable goals should not be stretched to surveil constitutionally
protected activities and prosecute those who happen to be marching
within earshot of criminal acts. The FBI and the Justice Department
have a long, ignoble history of curtailing the rights of citizens
to lawfully dissent. Too many signs point to a new chapter of
government abusing Americans who exercise their most cherished

Jonathan Blanks is a research associate at the Cato Institute’s Project on Criminal Justice and writer-in-residence at Harvard University’s Fair Punishment Project.

Click here to view the full article which appeared in CATO Journal