An individual who worked for the United States Army Force Protection Division at Fort Lewis in Washington violated a Defense Department directive by attending public demonstrations. It also appears he violated Posse Comitatus, according to his own deposition in a lawsuit challenging alleged domestic military spying.
The lawsuit [PDF] is known as Panagacos v. Towery. It accuses the US military of directing John Jacob Towery to infiltrate a group called the Port Militarization Resistance (PMR) in Olympia and Tacoma, Washington. It also accuses the cities of Olympia and Tacoma of coordinating with the military to violate the First and Fourth Amendment rights of activists.
According to Larry Hildes, who is one of the National Lawyers Guild attorneys representing activists targeted by the military, PMR organized demonstrations from 2006 to 2009 against the “use of civilian ports in Puget Sound for Stryker vehicles and other military cargo being shipped over to Iraq and then shipped to Pakistan or Afghanistan.”
The Defense Department must follow the Posse Comitatus Act, which prohibits the military from being involved in civilian affairs. The Congressional Research Service further explains that it “outlaws the willful use of any part of the Army or Air Force to execute the law unless expressly authorized by the Constitution or an act of Congress.”
In addition, the Defense Department has its own directive—”5200″—which states, “No DOD personnel will be assigned to attend public or private meetings, demonstrations or other similar activities for the purpose of acquiring information, without specific approval by the Secretary of Defense or his designee.”
Towery, during a deposition on March 28, was asked by Hildes if he had permission from the Secretary of Defense to attend public demonstrations. He answered, “I did not.”
Thomas Rudd, head of Force Protection, arranged for Towery to be paid overtime or “comp time” by the Army to attend demonstrations. He attended protests at the Port of Tacoma. He also attended protests at the Port of Aberdeen and the Port of Grays Harbor, but he could not recall whether these were demonstrations the Army paid him money to attend.
Towery was paid overtime or “comp time” to attend meetings leading up to a protest at the Port of Olympia in 2007 too.
When details of Towery’s alleged spying first became public in July 2009, the military launched an internal investigation. The investigation concluded that he had violated “5200,” based on the fact that he attended public demonstrations while being paid by the Army.
Both Towery and Rudd “led the Army to believe” that Towery was only going to these kinds of meetings during “off-hours” for the brig. They said nothing to the Army about being paid to be at these meetings. But Hildes explained, “In fact, he was getting paid to attend meetings and he was, in fact, getting paid to attend meetings in private households.”
These were meetings in private households where plans for protests in the state of Washington and even demonstrations at the 2008 Republican and Democratic National Conventions were discussed.
Hildes thinks Towery and Rudd avoided the issue of violating Posse Comitatus by simply not telling the military investigators the full truth—that he was attending these private meetings while on the “government payroll” in order to collect intelligence.
Towery justified this activity during deposition by claiming, “The primary purpose of my attending was to develop threats or potential actions against the soldiers and the movements. Any ancillary information that I received that could have been a possible officer-safety issue or anything else like that” would be reported to Chris Adamson, who was the director of a regional intelligence group of the Department of Homeland Security’s Washington Fusion Center and a lieutenant of the Pierce County Sheriff’s Office.
He provided the personal emails and phone numbers of plaintiffs Jeff Berryhill and Brendan Dunn to Adamson, even though neither of them were under arrest or charged with crimes. [These individuals were at some point listed in a database as “domestic terrorists” and Adamson played a key role.]
“I gave [Adamson] information on people who he had known had been arrested on criminal activities and their known associates,” Towery said during deposition.
Hildes followed up, “So, therefore, it’s okay to tell him who they’re romantically involved with because they’ve been arrested at demonstrations before; is that right?”
“If they’re associating with the realm of people who commit these crimes and they are associating with them at these protests and—for identification, yes,” Towery eventually answered.
Towery told Hildes that he believed the term anarchist had been used as a “label of convenience.”
“We were looking at people and their actions and their threats to the military,” Towery added.
The complaint filed in the lawsuit in October 2010 accuses Towery, Rudd and other defendants of intentionally violating the Posse Comitatus Act as well as the rights of plaintiffs.
…Defendants as discussed throughout this complaint, collaborated and planned to make arrests despite the fact that Plaintiffs had violated no law, with the only evidence that they had any intent to do so coming from spying and surveillance that is illegal under the Posse Comitatus Act of 1887 and the Washington Privacy Act, as well as Article I, § 7 of the Washington Constitution and the Fourth Amendment to the US Constitution with the sole intent of disrupting the speech and chilling the First Amendment Rights of the participants causing great harm to plaintiffs and others…
While the Army conducted an investigation into the conduct of Towery and Rudd, Hildes does not believe the Army ever publicly announced the outcome of the investigation.
“To our knowledge, the Army never even announced the results of this investigation. We got it in discovery. I don’t believe there has ever been a press release or a press statement or a publication of this.”
Note: There is a summary judgment hearing on June 18. If the government loses, the lawsuit will proceed to a trial by jury on August 11 in Tacoma, Washington.