The Ninth Circuit Court of Appeals ruled yesterday that a lawsuit brought by a lawyer with the National Lawyers Guild against a military operative who infiltrated peace activist groups may proceed.
NLG member attorney Larry Hildes, one of the lawyers involved in bringing Panagacos v. Towery, told Firedoglake this is the “first time any appellate court has ever said that yes you can sue the military for damages for spying on civilian activists. As far as we know there has never been another case that said this.” He added, “By saying we have legitimate causes of action against the army personnel for spying on our clients, getting our clients arrested, etc,” it means we have grounds to sue and that these causes of action, if proven, may entitle plaintiffs to damages.
Prior to this, there was the case of Laird v. Tatum. It was a class action suit that went before the Supreme Court in 1972 and alleged unlawful “surveillance of lawful citizen political activity” that was violating activist groups’ First Amendment rights. The Supreme Court found the claim that this would pose some threat to the people in these groups to be “speculative” and dismissed the lawsuit.
From 2006 to 2009, a group called the Port Militarization Resistance (PMR) in Olympia and Tacoma, Washington, organized demonstrations against the “use of civilian ports in Puget Sound for striker vehicles and other military cargo being shipped over to Iraq and then shipped to Pakistan or Afghanistan.” Some of these demonstrations included acts of nonviolent civil disobedience.
Thomas Rudd, head of Force Protection at Fort Lewis, sent in John Jacob Towery, a civilian employee of Force Protection, to infiltrate groups, build friendships, provide reports on what was happening and being planned, etc. According to Hildes, Rudd would then disseminate these report to civilian and other military agencies. They would sit down and put together a list of individuals that needed to be targeted. They would list the targets’ license plate numbers and work to ensure the individuals were arrested over and over again and stopped over and over again. They would systematically harass these people, arrest them and even go so far as to get their landlord to kick them out of where they were living.
As Hildes detailed, this violated their First Amendment rights, their right to engage in peaceful protest. This also violated their right against unreasonable search and seizure because they were being targeted not because they were threat to military but because they were protesting against it. Rudd said they went out to “neutralize” PMR and had “no business” being involved in civilian demonstrations.
“There’s criminal law. Posse Comitatus makes it a crime for the military to engage in civilian law enforcement,” Hildes asserted. “Here they are not only engaging in it—They are leading it, directing it and targeting our folks. All of that violates their First Amendment rights and their Fourth Amendment rights.”
Brendan Dunn, part of a Students for a Democratic Society chapter, said on “Democracy Now!” in July 2009, after obtaining documents where he uncovered the true identity of Towery who had befriended him and claimed to be an anarchist:
…[W]hen I met him, he admitted to several things. He admitted that, yes, he did in fact spy on us. He did in fact infiltrate us. He admitted that he did pass on information to an intelligence network, which, as you mentioned earlier, was composed of dozens of law enforcement agencies, ranging from municipal to county to state to regional, and several federal agencies, including Immigration Customs Enforcement, Joint Terrorism Task Force, FBI, Homeland Security, the Army in Fort Lewis.
So he admitted to other things, too. He admitted that the police had placed a camera, surveillance camera, across the street from a community center in Tacoma that anarchists ran called the Pitch Pipe Infoshop. He admitted that there were police that did put a camera up there to spy on anarchists, on activists going there…
Hildes explained, “The job of the military, to put it bluntly, is to identify the enemy, seek them out and destroy them. When they decide that the enemy is the people who are dissenting from the wars they’re engaging in, we are in enormous trouble. If the enemy is us, the American people, when we dissent, when we speak out, when we organize demonstrations, then the Constitution has no effect.”
On November 13, 2007, Hildes recounted, a group of woman planned an action. Maybe they intended to blockade a striker brigade of equipment coming from Iraq. They moved into a blocked off street. There were no convoys. They were arrested based on Towery’s “intelligence” that was provided to the Olympia police commander, which suggested the group was going to block the convoy because they had planned it and discussed it during meetings.
The group of women were arrested for “attempted disorderly conduct.” As Hildes said, “What the hell is attempted disorderly conduct? Either your disorderly or not. Nobody attempts to be disorderly. If you attempt it and you don’t succeed, you haven’t committed a crime.” He added, “They were arrested specifically because Towery said they were planning this and because the army organized with the Olympia Police Department to make sure this group was arrested.”
What Towery did was deliberately intended to make it impossible for citizens to organize peaceful demonstrations. The worst thing they ever did was engage in nonviolent civil disobedience—peaceful blockades. The US military is not supposed to be engaged in activity against nonviolent US citizens engaging in protest activities.
The Army actually conducted its own investigation into the infiltration of activist groups. The Associated Press reported on December 2, 2010, it refused to release results because the activists intended to file a lawsuit.
AP reported senior officials on the base had been concerned about “bad publicity” if the “mainstream media” reported “US ‘spying’ on protesters,” and they were upset that local agencies, including the city of Tacoma, had turned over documents to the protesters revealing” the involvement of “intelligence specialist,” Towery. The Force Protection Division apparently concluded Towery had been acting as a “confidential informant/source and not as a member” of the Division, as if that made the involvement of the military any less reprehensible.
“The military, federal law enforcement have basically had free reign at least since September 11th attacks and really you can trace a lot of this back to the Anti-Terrorism and Effective Death Penalty Act of 1996,” Hildes concluded. “They have been able to get away with whatever they have wanted to do pretty much. We are hoping this will rein them in, that this will put a real check on the military to conduct domestic operations” and “act like an occupying army.”
Additionally, Hildes expressed hope that the case might draw attention to the operations of Homeland Security fusion centers because two fusion centers in the state of Washington worked with federal agents and local civilian law enforcement to target PMR and groups like it.