(photo: USCGAUX Public Affairs)

Hundreds of records from the Department of Homeland Security (DHS) on how department officials responded to Occupy Wall Street and the larger Occupy movement were published by the independent news website Truthout today. The records obtained through a Freedom of Information Act (FOIA) request contain many nuggets that show how Homeland Security was conscious of the fact that it could attract scrutiny if it was not careful in how it put together intelligence products or threat assessments on the movement.

The records also show an awareness among officials that many FOIA requests were being submitted. How the department handled the movement now would eventually get out to the public. It was important to hit all the right notes when guiding divisions of the department, fusion centers and any law enforcement agencies interested in guidance.

Scott Matthews, a senior privacy analyst for the Intelligence Privacy Office of DHS, wrote in an email that one of the department’s analysts, Shala Byers, had “recognized the potential hazards and brought the requests to our attention at a very early stage.” Her effort led to guidance being put together so that “components” could reach out to the Privacy and Civil Rights & Civil Liberties divisions to understand “what to report concerning the protests.”

This led Matthews to precociously congratulate the department on November 8, 2011:

I believe this was an excellent example of a coordinated effort by the offices involved to identify a potential problem, and takes steps to keep the problem from developing. I understand we have already received some FOIA requests regarding our possible reporting of the “Occupy…” protests. I think should the FOIA experts find it appropriate to release information about the manner in which this issue was managed within DHS, it could only be perceived as a positive by those in the public who closely observer [sic] the Department.

Now that the public has this email, is it clear that DHS did not engage in misconduct and did handle the Occupy movement properly? So far, it looks like DHS had a concern for ensuring the department was not involved in putting together reports on First Amendment activities, but the statement of congratulations makes one wonder if this was a charade that would be released to calm public concern and perhaps another set of officials were handling Occupy in a much different manner.

Additionally, the belief that there would be positive reaction to any release of records on DHS’ handling reveals a few things about government transparency. On one hand, Matthews knew records would likely see the light of day so he understood DHS had to be careful and be proactive if there was anything happening that could be considered violating citizens’ First Amendment rights. But on the other hand, officials were not doing anything wrong so there was nothing for FOIA experts to try to hide through FOIA exemptions or by denying the request. This material could have been selectively leaked to media when there was great interest in DHS’ role. It might have gone a long way to dispelling conspiracy theories propagated by an Examiner article that lacked proof of allegations on DHS participating in a crackdown on the Occupy movement.

Here is Byers’ guidance, which led to Matthews confident praise of the department:

The government may never collect or disseminate information based solely on First Amendment protected activities, or conduct investigations on that basis. Generally, reporting should be about the violence or criminality of a particular individual or group. Reporting on activities without a nexus to violence or criminality often raises First Amendment concerns. To justify research into and creation of a product containing First Amendment protected activity, personnel should consider whether they have a lawful predicate (e.g. a lawful purpose to perform their authorized law enforcement functions or other activities, that is not based on the protected activity itself). Once a lawful predicate has been established, personnel should ensure the scope of the research and reporting on the First Amendment protected activity is limited to the threat posed. This is often referred to as congruence. The treatment of groups that may be involved in the First Amendment protected activity or related events should be even handed and free of bias (e.g., not reporting more extensively or negatively on one group based on their viewpoint alone).

Furthermore, according to an article from J.A. Myerson of Truthout, DHS officials did not only consider the ramifications of putting together reports on Occupy but also engaged in an email discussion on whether the burning of an SUV with “anti-oil, pro-occupation graffiti” merited a homegrown terrorism report.

A CRCL policy adviser believed the longstanding position is that “DHS should not report on activities when the basis for reporting is political speech.”

Any violence thus far seems to be limited to clashes between some individuals who are or may be associated with the movement (the order of events in Oakland doesn’t seem to be clear) during attempts to remove protestors from certain locations or enforce curfews. In a product on the incident in Eugene, we’d be particularly concerned about attribution of the incident. The article notes that the police say they don’t know who set the fire or why they did it, and while some of the graffiti contains slogans consistent with some of the Occupy movement’s protests, the police say it would be ‘unfair to blame any one group’ for the incident, and the spokesperson for Occupy Eugene denounced the event and said it was not part of their tactics. Unless there is other intelligence that indicates that the vandalism can be attributed to the group, the product would have to be very careful not to attribute the incident to the movement.

In contrast, another CRCL policy adviser suggested the incident was similar to other actions carried out by the Earth Liberation Front (ELF), which authorities consider to be an “eco-terrorist” group. This adviser suggested, “I expect that the analyst considers the single incident to be an incident of domestic terrorism (similar to ELF attacks on SUVs), and would argue that the DHS authority to report would be based on this being a suspected domestic terrorism incident. I think a reasonable case could be made for that.”

Myerson highlighted a key element of the discussion in his article:

The question of the health and safety of the public (which was ultimately the justification given for the eviction of occupations around the country) raised controversy in the thread. One person wrote: “Other concerns appear to be health and safety related (use of heating equipment, disposal of trash, etc). As these concerns generally are localized and not related to domestic terrorism, to our knowledge, it would be difficult for DHS to justify a product on what is largely First Amendment protected activity that doesn’t appear to have a nexus to a DHS mission.”

Another person, however, wasn’t so quick to dismiss health and safety issues as outside DHS’s focus, bringing up “reports on the environment created at the protests sites that would endanger public health and safety, where the health and safety concern relates to a DHS mission.”

When do issues of public health and safety become issues of national security? When they can be considered as such does DHS have justification to assist law enforcement? I suppose that would depend on whether the First Amendment activity or act of political speech was really threatening public health or safety. I suppose it depends on if that isn’t simply being stated as a pretext to ramp up public support for bringing an end to the assembly or speech itself. But, of course, DHS would subscribe to alleged threats to public health or safety and be willing to act on them even if unsubstantiated.

*Previous coverage of the “Occupy Files” being released by Truthout.